Revocation of Wills

Question 1

A person who has testamentary capacity may revoke their will…

Answer 1

at any time prior to their death.

Question 2

If a testator has validly contracted not to revoke their will, but does so anyways….

Answer 2

A valid revocation will be upheld, but there may be an action for breach of contract against the testator’s estate that results in the imposition of a constructive trust.

Question 3

A validly executed will may be revoked by:

Answer 3

1. Operation of law;
2. Subsequent written instrument; or
3. Physical act.

Question 4

If a person marries after executing a will, and the spouse survives the testator, the spouse takes an….

Answer 4

intestate share.

Question 5

When will an (omitted) surviving spouse not receive an intestate share?

Answer 5

When it appears from the will (or premarital agreement) that the omission was intentional.

Question 6

Inter vivos gifts and nonprobate transfers that benefit the spouse have…

Answer 6

no effect on the omitted spouse’s right to an intestate share.

Question 7

If a testator is divorced or their marriage is annulled after executing a will…

Answer 7

all gifts and appointments in favor of the former spouse are revoked.

Question 8

If divorced spouses reconcile and remarry…

Answer 8

all provisions in favor of a former spouse will be revived in a will.

Question 9

The _______ statute in Virginia applies to children born or adopted after the will was executed.

Answer 9

pretermitted child

Question 10

If the testator had no other children at the time of will execution, the pretermitted child takes…

Answer 10

an intestate share.

Question 11

If the testator had other children at the time of will execution, the pretermitted child takes…

Answer 11

The LESSER of:

1. An amount equal to the largest bequest made to any of the testator’s other children, or
2. An intestate share.

Question 12

If a testator had other children when his will was executed but made no gifts to them, the pretermitted child takes…

Answer 12

also nothing.

Question 13

When a pretermitted child receives inter vivos gifts or insurance proceeds, what effect does this have on their entitlement to a share?

Answer 13

No effect, no matter how substantial.

Question 14

If a testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, to the extent possible…

Answer 14

the two instruments are read together.

However, the second instrument revokes (by implication) any inconsistent provisions in the first will.

Question 15

Partial revocation by physical act (is/is not) permitted in Virginia.

Answer 15

is

[such as when the testator crosses out only one clause in the will]

Question 16

The requirements for an effective revocation by physical act are:

Answer 16

1. A “sufficient” act (BTCOD);
2. With the intent to revoke (that is simultaneous with the act);
3. Performed by the testator or a proxy.

Question 17

Revocation by burning will be considered effective if there is

Answer 17

a slight singeing.

Question 18

Revocation by tearing will be considered effective if there is

Answer 18

a completed tear.

Question 19

“BTCOD” stands for:

Answer 19

Burning, tearing, canceling or cutting, obliterating, or destroying.

Question 20

Revocation by most physical acts will be effective if they…

Answer 20

touch a material portion of the will.

Question 21

Does accidental destruction revoke a will?

Answer 21

No, there must be intent to revoke present at the time of the physical act of destruction.

Question 22

Virginia permits proxy revocation by physical act of another, provided that…

Answer 22

the revocation is at the testator’s direction, and in the testator’s presence.

Question 23

Testator contacts her attorney by telephone. She advises the attorney that she would like to revoke her will. The attorney tears the will into four pieces and mails those pieces to the Testator, along with a letter explaining that her will has been revoked. Is the will validly revoked?

Answer 23

No, telephonic presence is not considered actual presence in the state of Virginia.

Question 24

If a will cannot be found after the testator’s death and was last seen in their possession or control…

Answer 24

the will is presumed revoked.

Question 25

A will will not be presumed to be revoked if it cannot be found at the testator’s time of death and…

Answer 25

It was not in the testator’s possession or control, or it was last seen in the possession of a person adversely affected by its contents.

Question 26

Revocation of a will also revokes all…

Answer 26

codicils to that will.

Question 27

Revocation of a codicil does not revoke…

Answer 27

the original will.

Question 28

If the testator executed duplicates of his will, the will may be revoked by…

Answer 28

an act of revocation performed by the testator upon either copy.

Question 29

Destruction of an unexecuted will is….

Answer 29

not effective, even if the testator has a present intent to revoke.

Question 30

Virginia (permits/does not permit) probate of a lost or destroyed will.

Answer 30

permits

Question 31

If a will is honestly lost or destroyed, in addition to overcoming the presumption of revocation that may be raised by the will’s nonproduction, the proponent must prove…

Answer 31

by clear and convincing evidence:

1. That the will was properly executed;
2. That the will was lost or destroyed; and
3. The will’s contents.

Question 32

In Virginia, the dispensing power statute may be applied to interlineations so that an addition to or alteration of a will is given effect where there is…

Answer 32

clear and convincing evidence that the testator intended to modify the will by their additions or alterations.

Question 33

To be restored to effectiveness, a previously revoked will must be…

Answer 33

reexecuted with full testamentary formalities.

Question 34

The valid execution of a codicil that makes express reference to a revoked will can revive the will under…

Answer 34

the doctrine of republication by codicil.

Question 35

The doctrine of dependent relative revocation applies when…

Answer 35

a testator revokes their will based on a mistake of law or fact as to the validity of another testamentary instrument, and but for this mistake, the testator would not have revoked the will.

Question 36

For the doctrine of dependent relative revocation to be applied, the disposition that results from disregarding the revocation must…

Answer 36

come closer to effectuating what the testator tried (but failed) to do, rather than what would occur if the revocation is given effect.

Question 37

This doctrine states that if a testator revokes a will with the intention to immediately create a new will, but the new will is either not made or fails, the testator is presumed to have preferred to apply the first will rather than to have the estate distributed by intestate succession.

Answer 37

The doctrine of dependent relative revocation.